Introduction

On February 14, 1997 the Natural Resources Defense Council, Inc. (NRDC), joined by two California groups, Western States Legal Foundation and Tri-Valley Citizens Against a Radioactive Environment (Tri-Valley CAREs), sued the Department of Energy (DOE) and the National Academy of Sciences (the "Academy" or NAS) for establishing and utilizing an NAS Committee for the Review of the DOE Inertial Confinement Fusion Advisory Committee ("NRC-ICF Committee") in violation of the Federal Advisory Committee Act (FACA).[3] DOE had asked the Academy to assess the technological readiness of the National Ignition Facility (NIF) project to proceed with construction. NIF is a $1.7 billion inertial confinement fusion machine the size of the Rose Bowl that DOE began constructing in June 1997 at the Lawrence Livermore National Laboratory (LLNL) in California.[4] Plaintiffs argued that the NRC-ICF Committee was not "fairly balanced in terms of the points of view represented" on the panel with respect to the committee's charge to investigate the scientific and technological readiness of NIF, and that the committee violated FACA's "openness provisions, including failure to provide public notice of meetings, failure to permit interested persons to attend, appear before, or file statements at meeting not closed for reasons of national security."[5]

Finding that the NRC-ICF Committee had likely operated in violation of FACA at least with respect to FACA's "openness" provisions, on March 5, 1997, District Court Judge Paul L. Friedman granted in part plaintiffs' motion for a preliminary injunction. The Court enjoined DOE from (1) "providing or obligating any funding, monies or other forms of support to the NRC-ICF Committee or to NAS for the purpose of supporting the ICF Committee as of today"; and (2) "utilizing, relying on or in any way incorporating into its decisionmaking process the ICF Committee report or any other work product of the ICF Committee." Concerned by First Amendment implications, the Court declined to enjoin the Academy from publishing the results of its panel's deliberations, and the Academy proceeded to publish the report of the NRC-ICF Committee on March 20.[6]

Shortly after the Court rendered the preliminary injunction in NRDC, et al. v. Peña, et al., several members of the Academy criticized NRDC for having brought the suit, and a chorus of Academy members have since argued that it would be ruinous to the Academy if were forced to comply with FACA.

Despite being deprived of the very report which DOE had hitherto stated would be crucial to its decision on whether to proceed with the project, DOE announced on March 11, 1997 that it had approved Critical Decision 3, construction of the NIF. Groundbreaking ceremonies took place on May 29, 1997.

On August 6, 1997, in response to a motion by DOE to expedite entry of a permanent injunction, Judge Friedman converted the preliminary injunction into a permanent injunction. On September 22, DOE gave notice that it was appealing the case to the U.S. Court of Appeals for the District of Columbia.

Judge Friedman's conclusion that NAS committees utilized by one or more Federal agencies are advisory committees for purposes of FACA was based on a January 10, 1997 decision by a three judge panel of the U.S. Court of Appeals for the D.C. Circuit. Animal Legal Defense Fund (ALDF), et al. v. Donna E. Shalala, et al., 104F.3d 424, 429 (D.C. Cir. 1997) Following an appeal by the Academy, the Court of Appeals refused to rehear the ALDF v. Shalala case en banc, and now the Academy is appealing ALDF v. Shalala to the Supreme Court, whose dicta was the basis for the original three judge opinion. The U.S. Government did not join the Academy in seeking certiorari. On October 3, 1997, eighty-four prominent scientists, physicians, and engineers filed a friend-of-the-court brief with the Supreme Court.[7] On November 3, 1997, the Supreme Court without comment denied the Academy's petition for cert., letting stand the lower court ruling.[8]

The Academy has drafted a proposed amendment to the FACA that would exempt "any committee created by an entity other than an agency or officer of the Federal Government and not subject to actual management and control by such agencies or officers." Congressional hearings were held on the proposed legislation on November 5, 1997.[9]

In weighing the costs and benefits of the protections afforded by FACA, it may be important for members of Congress, the press, and the interested public to understand how the Academy operates when left entirely on its own to conduct an ostensibly disinterested review of a nuclear weapon science project that may ultimately involve the expenditure of some $3.5 billion of the public's money. In what follows we begin by reviewing the history of how and why the NRC-ICF Committee was created. We demonstrate, beyond a reasonable doubt, that the Academy appointed an egregiously unbalanced committee, several members of which had, in addition, serious financial conflicts-of-interest. We show how both the Committee and the Academy leadership refused to correct these problems when they were brought to their attention. We also show how the Academy staff and the NRC-ICF Committee behaved in the face of public efforts to correct the deficiencies in the committee membership, to attend meetings and testify before the committee, and to obtain documents related to committee briefings. Finally, we address the issue of whether the Academy should be required to comply with the "balance of views" and "openness" provisions of FACA.

Establishment of the Third NRC-ICF Committee

Between 1978 and 1996 -- prior to the establishment of the NRC-ICF Committee -- no less than a dozen nominally independent reviews were conducted evaluating either DOE's ICF program as a whole or specific candidate "driver" technologies for achieving fusion in the laboratory."[10] Two of these reviews were conducted by committees of the NAS: a 1986 committee chaired by Professor William Happer (of Princeton University), and a 1990 committee chaired by Professor Steven Koonin (of the California Institute of Technology). The most recent of these earlier reviews was conducted by the Inertial Confinement Fusion Advisory Committee (ICFAC) chaired by Professor Venkatesh Narayanamurti (Dean of the College of Engineering, University of California at Santa Barbara). As an advisory committee established by DOE, ICFAC was legally required to comply with FACA -- a matter that was never in dispute. ICFAC held seven meetings, the first the first of which was on December 16-18, 1992, and the last on November 14-15, 1995.

While a large majority of ICFAC members had voted in May 1994 to support proceeding with engineering design of the NIF, this decision was based on non-peer-reviewed LASNEX code predictions, hastily generated in the weeks prior to the meeting, of achieving ignition with novel gas-filled hohlraum targets -- predictions that were not borne out by actual experiments conducted after the meeting. Key agreed "physics milestones" for the NIF project stemming from the 1990 Academy study -- demonstrating control over the conversion of laser to x-ray energy and its spatial and temporal distribution on the tiny capsule of deuterium-tritium fuel ["hohlraum laser physics" or HLP], and understanding of the conditions required for stable capsule implosion and subsequent propagation of a fusion "hot spot" to "ignition," (when fusion output of the capsule equals or exceeds the laser energy deposited in the hohlraum) -- remained unmet, but the NIF project nevertheless proceeded apace toward a "key decision" on siting and construction, then slated for the early fall of 1996. However, according to Chairman Narayanamurti, "We all agreed that rapid progress in ICF research and development must continue in order to resolve some important remaining technical uncertainties prior to Key Decision 2 [now called Critical Decision 3-NIF Construction.][11]

A year later, at the June 6-8 1995 ICFAC meeting at Sandia National Laboratory, major and potentially crippling problems persisted in the NIF's target physics, particularly in demonstrating, via NOVA laser experiments and computational extrapolations, the ignition potential of the NIF "baseline" indirect drive gas-filled target. Dr. Stephen Bodner of the Naval Research Laboratory urged the committee "to alert the DOE to the current problems in the NIF target."[12] The upshot of the meeting was a proposal by the Chairman, endorsed by several of the members present, to reconstitute an ICFAC Target Physics Subcommittee that could probe more deeply into the critical issues that had been raised at the meeting. The next full committee meeting was set for mid-November, 1995.

At an August 8-9, 1995 ICF Program Managers meeting, the Director of DOE's Office of Inertial Confinement Fusion requested that the fusion research laboratories provide written comments on the utility of the ICFAC committee.[13] In a September 3 written response to DOE Headquarters, three senior scientists in the ICF program at LLNL suggested that ICFAC members lacked sufficient expertise in "high energy density physics" and "driver technology development."

This criticism is particularly clear for glass laser development [i.e. NIF]. We would urge you to take the opportunity to replace six members this fall to increase the technical expertise of the committee. Bob McCrory has voiced his opinion that the rules of a federal advisory committee are too restrictive, but a judicial choice of candidates could make this possible (emphasis added).

The Livermore ICF program leaders concluded their critique by noting, "the charges to the committee should be broadened" to reflect the increasing involvement of the ICF program in "Science-Based Stockpile Stewardship" (SBSS).

In the past, there has been a very intense focus of the committee on the likelihood of ignition. We feel many of these questions have been answered and although much work remains to be done, the involvement of the ICF program and its existing facilities in SBSS should increase in the areas where there is overlap. . . hydrodynamics, high radiation temperature hohlraums, and EOS [equations of state]. . . . The charges to the committee should reflect this.[14] (emphasis added)

Of course, from a programmatic standpoint, a major virtue of each of the listed SBSS technical areas is that they do not presuppose or require ignition, thereby diffusing the sensitive -- and possibly "show -- stopping" -- political issue of whether the NIF project was scientifically and technically ready to achieve its fundamental mission.

On September 6, 1995, Assistant Secretary of Energy for Defense Programs (ASDP) Victor H. Reis was briefed by his staff in preparation for the next ICFAC meeting scheduled for November 14-16.[15] One of the viewgraphs presented at this meeting, entitled "Highlights of 8/21/95 Draft ICFAC Report," noted that ICFAC would recommend "further risk reduction work on the NIF ignition target," identify "remaining technical challenges," including "modeling ignition hohlraum physics and a "quantitative understanding of mix and asymmetry in implosions," and recommend "a new target physics contract" as a sequel to the "Nova Technical Contract."[16] Another viewgraph noted that ICFAC "Recommends LLNL and LANL give very high priority to goals of the new Target Physics Contract (emphasis added)."

ICFAC's final report and recommendations from the June meeting, sent to Reis on October 2, noted ICFAC's interest in receiving "the 1995 Target Physics Contract (TPC) under development by Livermore and Los Alamos as soon as a sufficiently mature draft is available, and in reviewing it at our next meeting." The report also noted "the importance of advancing the objectives of the TPC towards achieving continued risk reduction prior to Key Decision 2 [i.e., prior to NIF construction], and recommended that: Los Alamos and Livermore "give high priority to achieving the goals of the TPC;" the "goals of the TPC be carefully balanced with the need for enunciating. . . [the] role of NIF in Stockpile Stewardship;" and that "these be reviewed by the ICFAC in 1996."[17] Clearly, the chairman and members of ICFAC had no idea that the decision to terminate the committee had already been taken, and that ICFAC would not be meeting in 1996.

DOE had already heard enough, and apparently saw no point in waiting for ICFAC's Final Report. At the September 6 briefing to Dr. Reis, the two principal "ICFAC Weaknesses" listed by the ICF Program Office were that ICFAC was "Restricted by legal requirements (FACA)" and "Perceived to lack understanding of science-based stockpile stewardship." A third weakness was that the committee had been "vague in identifying [the] value of KrF [i.e., krypton-fluoride laser technology] to stockpile stewardship.[18] After reviewing the pros and cons of seven alternative advisory group concepts, the staff made three recommendations to Reis: 1) permit ICFAC to hold its mid-November meeting; 2) abolish ICFAC after this meeting; and 3) "commence procurement actions to establish a National Academy of Sciences review of ICF."[19] At the conclusion of the September 6 briefing, Reis indicated his agreement and directed his staff "to proceed with the necessary actions to implement those recommendations."[20]

Abolishing ICFAC

On November 8, 1995, a week before their scheduled meeting at General Atomics in San Diego, members of ICFAC received a letter from Energy Secretary Hazel O'Leary stating that this would be the last meeting and that ICFAC's charter would not be renewed.[21] Members of ICFAC said the letter caught then by surprise. The basis given for eliminating ICFAC was that "[t]he program is now entering a new phase of broader scope as an integral part of the Department's science-based stockpile stewardship of nuclear assets . . . the limited scope of the committee restricts its usefulness."[22] There was no hint that another reason DOE's Defense Programs staff wanted to abolish ICFAC was the legal restrictions imposed on its work by FACA.

According to the minutes of the final ICFAC meeting, held November 14-15, 1995, Dr. Marshall Sluyter, Director of the DOE Defense Programs Office of Research and Inertial Fusion, told the committee that when it was formed in 1992:

"there had been neither a Science Based Stockpile Stewardship (SBSS) Program nor a moratorium on the testing of nuclear weapons. Under the circumstances existing at the time, the ICFAC was an appropriate body to offer guidance to DOE regarding the IFC program. After extensive review, DOE has reached the conclusion that, in view of the greatly expanded role of ICF within the SBSS program, this is no longer the case. The ICFAC's charter is too restrictive to allow it to continue to provide the valuable guidance which DOE has been grateful to receive from it in the past." [23]

In reality, the ICFAC's charter merely stated that its purpose was to "provide advice and guidance to the Assistant Secretary for Defense Programs on both the technical and managerial aspects of the inertial confinement fusion program" -- hardly a "restrictive" formulation -- while ICFAC's first meeting was held December 16-18, 1992, more than two months after President Bush had signed the "Hatfield-Exon-Mitchell" nuclear test moratorium amendment into law, on October 2, 1992.

According to the minutes of the November 1995 ICFAC meeting, DOE was planning to make a formal "Record of Decision" on where to build NIF in September 1996, following completion of an environmental impact statement supporting construction of NIF at the "preferred" Livermore site. In light of the tight timetable for achieving this objective, DOE's real motivation for dissolving ICFAC was succinctly summarized by Dr. Sluyter in a December 15, 1995 memorandum to ASDP Reis:

"A major review of the ICF program is needed in this fiscal year to reaffirm mission need and give further credence to arguments for success of the National Ignition Facility (NIF). Earlier discussions with NRC [National Research Council] officials revealed that in order for the National Academy of Sciences to produce an interim report before September 1996, a contract with the NRC must be in place by February 1996."[24]

A deputy to Reis had already sent to the Academy a draft of a proposed letter from Reis to Dr. Bruce M. Alberts, who serves as both President of the NAS and Chairman of the NRC Governing Board.[25] This draft letter requested that the NAS convene a standing panel to periodically review the ICF program as well as relevant aspects of the science-based stockpile stewardship concept. The Academy edited the draft and returned it to DOE.[26]

On 18 December 1995, Reis sent to Alberts the final version of the letter that DOE and NRC had jointly crafted.[27] In his letter Reis requested that Alberts "examine the requirements to convene a National Academy of Sciences standing committee to periodically review the ICF program, as well as issues of the SBSS concept."[28]

On January 17, 1996, Alberts sent his formal response to Reis.[29] In his letter Alberts says, "It is particularly gratifying for me to read your assessment that the earlier advice has 'been of significant value to our [DOE's] planning over the intervening years.' "[30] This little testimonial had in fact been crafted and inserted by the Academy's own staff into the DOE draft letter.

Statement of Work of the NRC-ICF Committee

Was the primary purpose of the NAS committee's interim report was to advise DOE regarding the NIF project's scientific and technological readiness for construction? And were these views solicited to provide support for DOE's construction decision? Under the prevailing judicial interpretation that federally-funded NRC committees are subject to FACA, these questions are germane to assessing whether the NRC-ICF Committee complied with FACA's provision that an advisory committee "established by" an agency be "fairly balanced in terms of points of view represented." The DOE staff maintains that the NRC-ICF Committee's initial review was tied to the construction decision and NRDC shares this conclusion. For example, in court papers Dr. David Crandall, Director of DOE's ICF Program, stated, "In its report, the ICF Committee provides an assessment of the technical and scientific readiness of NIF to proceed to the construction phase, . . .[31] Likewise, at the Committee's first meeting, Dr. Robin Staffin, the DOE Defense Programs Deputy Assistant Secretary for Research and Development, "pointed out that the committee's input, at least in the form of an interim report, will be essential prior to proceeding through Critical Decision 3, approval of physical construction of the NIF."[32]

The Academy staff has sought to argue otherwise. In court papers Dr. Dorothy Zolandz, the NRC-ICF Committee's staff director at the NRC, cited the committee's "Terms of Reference," which do not include the words "to proceed to the construction phase, " and she went on to say, "The Committee simply was not charged with evaluating, nor was it composed to evaluate, policy decisions such as SBSS (Science-based Stockpile Stewardship), or to make recommendations about the physical construction of the NIF (the National Ignition Facility), known as Critical Decision 3, in DOE's ICF time table."[33]

Further information, obtained during the discovery phase of NRDC, et al. v. Peña, et al., shows that while the underlying charge to the committee remained unchanged, the public description of this charge was altered at the last moment at the behest of Academy officials, with the intent of papering over the otherwise obvious link between the NRC-ICF Committee 's interim report and the DOE's planned go-ahead for NIF construction. A logical inference from the evidence presented below is that the Academy belatedly sought to conceal -- or at least blur -- the review's linkage to NIF construction, because it attested to the fact that the NRC-ICF Committee had indeed been specifically established by DOE to perform an advisory function in a major program decision -- a degree of responsibility that someone -- either the Academy staff, the committee chairman, or other interested parties -- did not want to see explicitly and publicly acknowledged.

The description of the second item in the contract's "Statement of Work," concerning assessment of the adequacy of the ICF Program's technical basis for achieving ignition, was likewise modified very late in the contracting process, possibly at the behest of parties with an interest in the review's outcome. The effect was to submerge the sensitive issue of whether the level of confidence in achieving fusion ignition with the baseline cryogenic indirect-drive target was indeed sufficient to support a $1.7 billion decision to proceed with construction of the NIF in its current design configuration. The evidence supporting these inferences is as follows:

On November 21, 1995, DOE sent to the Academy a draft "Statement of Work" for the Academy's review.[34] According to this draft statement of work, "The Review Group [the NRC-ICF Committee] will conduct an initial review to determine:

(1) the technological readiness of the NIF project to proceed with construction, (2) adequacy of the ICF program in addressing the confidence of achieving ignition and providing the technical basis associated with NIF performance, and (3) projected capabilities of the NIF to support SBSS."[35] (emphasis added) After only slight modifications to other sections[36] the statement of work was redated "Dec 1995" and included as an enclosure to the December 18, 1995 letter from Reis to Alberts.[37]

On February 21, 1996, the Academy submitted a formal proposal to DOE which includes essentially the same language under "Proposed Activities," i.e., " An initial review will be conducted over a 12-month period from the issuance of an award that determines (1) the technological readiness of the NIF project to proceed with construction, (2) adequacy of the ICF program in addressing the confidence of achieving ignition and providing the technical basis associated with NIF performance, and (3) projected capabilities of the NIF to support SBSS."[38] (emphasis added)

On May 6, 1996, the Academy delivered to DOE the signed contract for the "Review of DOE's Inertial Confinement Fusion Program."[39] The "Services" identified in the signed contract referred to the aforementioned "Statement of Work (Dec 1995)," which was attached to the contract. Under normal contracting procedures between Federal agencies and the Academy for multiyear contracts, the formal contract contains a statement of work that is written in broad terms. Over the course of the contract period the agency then prepares specific "task assignments," each providing in greater detail the tasks to be performed during a specified period. However, in this case the cover letter to the completed contract included several revisions under the heading "Comments, Exceptions, Understandings Re: Letter Contract Number DE-AC01-96DP00116." One of these was entitled "Revision of Task Assignment 1."

Task Assignment 1 should be revised as follows:

Description of work to be performed: Select and Appoint Review Group members. Conduct an initial review to (1) determine the scientific and technological readiness of the NIF project, (2) assess the entire ICF program (including program scope, balance, and priorities; facility operations; experimentation, theory, etc.) and make recommendations to facilitate the achievement of the scientific goal, which is ignition, and (3) evaluate the capabilities of the ICF program (in conjunction with NIF) to support SBSS (emphasis added).[40]

The titling of this paragraph as a "revision" is curious, as there is no prior documentary evidence of a "Task Assignment 1" or any other task assignments having been prepared by DOE. The contract between DOE and the Academy was for a three year period. Task Assignment 1, submitted in a cover letter by the Academy, covered the preparation of an interim report to DOE by the NRC-ICF Committee . The existing contract requirement to provide "an initial review to determine (1) the technological readiness of the NIF project to proceed with construction" could only have been met if the determination were made as part of Task Assignment 1.

However, the language of the revised Task Assignment 1 represented a considerable watering down of the contract language. The words "to proceed with construction" which appear in the DOE/NAS contract were omitted from the "revised" Task Assignment 1. Similarly, the contract's charge to determine the "adequacy of the ICF program in addressing the confidence of achieving ignition" became "make recommendations to facilitate the achievement of the scientific goal, which is ignition." In a viewgraph presentation to the committee at its first meeting two months later, Dr. Robin Staffin from DOE's Office of Defense Programs elucidated the meaning of the latter phrase by explaining that the Committee was being tasked to assess "program quality and readiness to seek ignition." The third bullet of this viewgraph states, "Need report (at least interim) prior to March 1997 for Critical Decision 3 - physical construction of NIF."

Thus what began as "an initial review that determines . . . the technological readiness of the NIF project to proceed with construction; the adequacy of . . . confidence of achieving ignition and . . . the technical basis associated with NIF performance," became "a review to determine the scientific and technological readiness of the NIF project...and make recommendations to facilitate the achievement of . . . ignition," and then finally, "determine program quality and readiness to seek ignition," thereby widening the goal posts to ensure that NIF would not fail to score.

This new description of work to be performed under the revised Task Assignment 1 became the "Terms of Reference"[41] for the Committee for the Review of the DOE Inertial Confinement Fusion Program, which were made available to the Committee and others. But as evidenced by Dr. Staffin's remarks to the Committee at its first meeting two months later, to which no one in attendance took exception, the programmatic purpose to be served by the committee's initial review remained unchanged.[42] At the time the NRC-ICF Committee 's interim report was due March 6, 1997 and DOE plans called for physical construction work to begin in "early-March" 1997. Indeed, in the NRC-ICF Committee's March 1997 report, the Committee used slightly different language from that in the DOE/NAS contract, but it had the same meaning. The NRC-ICF Committee stated that it was rendering a judgment on whether the NIF project was "technologically and scientifically ready to proceed as planned."[43]

It is still a mystery to us who -- DOE or the Academy -- first crafted the wording of the revised Task Assignment 1 and "Terms of Reference" in a manner that did not faithfully reflect the more precise language of the contract, nor do we know conclusively why these changes were made. The changes occurred three months after Steven Koonin was appointed Chairman of the NRC-ICF Committee , but it is not know by us what part, if any, Koonin played in preparing the Task Assignment 1. But what is clear is that under the contract the NRC-ICF Committee agreed to determine whether the Government's ICF program was technologically ready to proceed with the construction of NIF, and, the Academy's disavowal notwithstanding, the NRC-ICF Committee made such a determination.

Selection of the NRC-ICF Committee Members

On January 16, 1996, Marshall M. Sluyter, Director of the Office of Research and Inertial Fusion at DOE, sent a memorandum to six laboratories that conduct ICF research for DOE, requesting suggestions for NRC-ICF Committee members.[44] These labs were the Livermore, Los Alamos and Sandia National Laboratories, the University of Rochester's Laboratory for Laser Energetics, the Naval Research Laboratory and General Atomics, the latter a commercial firm that makes ICF hohlraum targets and conducts research on the manufacture of targets. In his memorandum, Sluyter said, "Purely as a matter of courtesy, the NAS has, in the past solicited DOE's suggestions for committee members. Anticipating this, I am seeking the suggestions of the laboratory ICF program directors."[45] Each of the laboratories responded, and in a Memorandum for the Record prepared one month after NRDC had filed its FACA suit against DOE and the Academy, Dr. David Crandall at DOE wrote, "The information contained in the responses was sent to the NRC, though the NRC neither solicited it nor acknowledged receipt of it."[46]

Professor Steven E. Koonin, Vice President and Provost of the California Institute of Technology, was appointed Chairman of the NRC-ICF Committee. His letter of appointment was sent by NAS President Alberts on February 7, 1996. Koonin is a member of the NAS, and he had chaired the NRC's influential 1990 ICF review that recommended focusing the bulk of the program's resources on glass laser-driven fusion.[47] Koonin had been recommended for membership on the NRC-ICF Committee by LLNL and the University of Rochester's Laboratory for Laser Energetics, the two main beneficiaries of the recommendations contained in the 1990 report.

Dr. Dorothy Zolandz, Director of the Board of the National Institute of Standards and Technology (NIST) Programs at the NRC, acted as the Staff Officer and Study Director for the NRC-ICF Committee. Dr. Zolandz claims to have had primary responsibility for assembling a slate of nominees for committee membership.[48] According to Zolandz, "The slate of nominees was constructed in close consultation with Steve E. Koonin, who had been appointed chair by the Chairman of the NRC."[49] "The nominees for the Committee were approved by the Chairman of the NRC on April 26, 1996 and letters of appointment were sent by the Academy to each proposed member in May."[50] Because of scheduling conflicts one prospective committee member, Arden L. Bement, Professor of Engineering at Purdue University, resigned from the committee prior to its first meeting on August 1-2, 1996. At this first meeting, the committee determined that it needed additional expertise; and to that end, two new members were added to the committee: Henry W. Kendall of the Massachusetts Institute of Technology and J. Pace VanDevender of Prosperity Institute, Albuquerque, NM.

The following 16 persons were ultimately selected and agreed to serve on the committee:[51]

Steven E. Koonin, California Institute of Technology, Chair

W. David Arnett, University of Arizona

Robert L. Byer, Stanford University

Robert W. Conn, University of California at San Diego

Ronald C. Davidson, Princeton University

Anthony J. DeMaria, DeMaria ElectroOptics Systems, Inc.

Paul E. Dimotakis, California Institute of Technology

Jack J. Dongarra, University of Tennessee

Roger W. Falcone, University of California at Berkeley

Hermann A. Grunder, Thomas Jefferson National Accelerator Facility

Henry W. Kendall, Massachusetts Institutes of Technology

Arthur K. Kerman, Massachusetts Institute of Technology

Steven A. Orszag, Princeton University

Marshall N. Rosenbluth, University of California at San Diego

George H. Trilling, Lawrence Berkeley National Laboratory and the
University of California at Berkeley

J. Pace VanDevender, Prosperity Institute, Albuquerque, NM

Lack of Balance in the Membership of the NRC-ICF Committee

All of the committee members are distinguished scientists and the committee was well suited for technical evaluation. Their scientific credentials were never an issue; rather, it was whether the committee as a whole was balanced with respect to rendering a judgment on whether DOE's ICF program was scientifically and technologically ready to begin construction of NIF at LLNL. Speaking on behalf of the Academy, Dr. Zolandz declared:

Of course, anyone with the requisite knowledge and expertise in many of these narrow fields, such as plasma or laser physics, will have some connection to or collaborations with a national lab, such as Lawrence Livermore National Laboratory ("Livermore") and will have connections to or collaborations with many other people and organizations in the field.[52]

Privately, however, some NRC officials say they are unhappy with the selection process for the study. "It was a sloppy job," says one NRC source.[53] Each of the 16 members of the NRC-ICF Committee fall into one or more of the following categories:

(e) previously recommended, as members of Second NAS ICF Review Committee in 1990, that funding priority be given to Livermore's technical approach of developing a 1-2 megajoule glass laser to "demonstrate" fusion ignition and modest gain in the near term, while recommending termination, deferral, or scaling back of other approaches (Koonin, Conn, Davidson, DeMaria, Rosenbluth);

(f) former head of DOE's Office of Fusion Energy (Davidson);

(g) on leave from Sandia National Laboratory where he was in charge of DOE funded ICF work (VanDevender);

(h) received free time on Nova, a glass laser ICF facility at LLNL (Arnett);

(i) employed by the management and operating contractor (University of California) of the weapons laboratory hosting the NIF project (Conn, Falcone, Rosenbluth, Trilling);

(k) lobbied the Chairman of the Subcommittee on Energy and Water Development of the House Appropriations Committee to support DOE SSMP and NIF (Kendall);

(l) lobbied Rep. Ron Dellums office expressly to support the LLNL position on NIF (Koonin);

(m) said to be a joint owner of a commercial firm with a DOE/ICF program researcher at the University of Rochester's Laboratory for Laser Energetics, where NIF related experiments are conducted (Orszag);

(n) professor emeritus at UC's Lawrence Berkeley Laboratory which has a heavy-ion ICF program that collaborates closely with LLNL (Trilling);

(o) appeared in a promotional video about NIF which was prepared by LLNL and shown at the NIF groundbreaking ceremony (Koonin and Kendall);

Considered on an individual basis, some of these conflicts-of interest are clearly disqualifying, while others are not. For example, while being on the payroll of Livermore's ICF program for long periods (e.g., Kerman), both immediately prior and immediately after the NAS review, is a serious and in most cases disqualifying conflict, simply being an employee of the same UC management that also manages Livermore is not. However, it is the totality of such member conflicts and associations that must be taken into account when constituting a committee that can be fairly characterized as balanced. For example, having four members of the panel be UC employees may by itself not be very significant, but considered in conjunction with the five members who were paid consultants to Livermore, and the eight members employed by or on leave from other DOE physics and fusion research contractors, means that 14 out of sixteen members had a personal or institutional connection with the agency whose program was ostensibly undergoing "independent review." As for the remaining two members without an obvious institutional tie, one had received free time on Livermore's Nova laser for his research (Arnett), and the other (DeMaria) had served on two previous panels endorsing Livermore's technical approach to ICF.

Looked at another way, at least 11 out of 16 members (i.e., two-thirds) of the committee had either previously stated positions supporting the NIF project and/or were consultants or advisers to Livermore Laboratory and even the NIF Program itself.

Taken as a whole, therefore, the NRC-ICF Committee was egregiously unbalanced, that is to say, biased, in its inclusion of individuals with serious conflicts of interest, and in its lopsided distribution of scientific and technical viewpoints, professional associations, and institutional affiliations. In light of the evidence of such palpable bias, and the expressions of outside concern which it aroused, the response of the Academy is nothing short of astonishing, and provides a good indicator of the standards likely to be applied to NRC federal advisory committees in the future if the Academy succeeds in removing itself from the purview of FACA. In a January 22, 1997, letter to NRDC, Dr. Bruce Alberts responded to the bias concerns as follows:

"After careful review, I can only respond by reiterating what my colleagues here at the NRC have discussed with your before - that the NRC has carefully chosen this committee of highly-qualified experts, that the NRC believes the committee is appropriately balanced and free of conflict of interest for the charge addressed to the NRC, and that the committee's draft report will be rigorously reviewed by experts outside the committee and revised, if necessary. . . .

"It is true that half of the committee members have served on previous bodies reviewing the NIF, ICF, or the DOE laboratories. . . Such service, in fact, gives these members both a broader and more in-depth knowledge of the scientific and technical issues in the programs which are being reviewed. Concerning the overall balance of the committee, fully one-half have no such previous experience with the NIF or ICF program." [54]

This response indicates a virtual breakdown in the Academy's controls for recognizing obvious individual conflicts of interest and palpable bias in the composition of its review committees. We review below the backgrounds of each of the committee members individually, beginning with the biographical sketch provided by the NRC-ICF Committee itself, which was included as Appendix C of the NRC-ICF Committee report. This is followed by additional relevant information which did not appear in the Academy report. The available data indicate that, contrary to Alberts claim, 12 of 16 members (75%) had "served on previous bodies reviewing the NIF, ICF, or the DOE laboratories," and 13 members (80%) of the committee had "previous experience with the NIF or the ICF program."

Steven E. Koonin (Chair) is vice president and provost and a professor of physics at the California Institute of Technology. His areas of expertise include theoretical nuclear physics and computational physics; current research interests include nuclear structure and reaction models and quantum computing. He has served as a consultant for various national laboratories, including Lawrence Berkeley, Lawrence Livermore, Los Alamos, and Oak Ridge. He chaired the National Research Council's (NRC's) 1990 review of the Inertial Confinement Fusion (ICF) program, served on the Department of Energy's (DOE's) Inertial Confinement Fusion Advisory Committee (ICFAC), and participated in a review of Science Based Stockpile Stewardship as part of the JASON group. He is a fellow of the American Physical Society, the American Academy of Arts and Sciences, and the American Association for the Advancement of Science.[55] (emphasis added)

The NAS's 1990 review of DOE's ICF program, chaired by Koonin, significantly altered DOE's ICF program. The NAS Committee judged the Laboratory Microfusion Facility (LMF), DOE's conceptual plan for a 100 megajoule high gain fusion facility to be too ambitious, and thus recommended that DOE abandon the LMF in favor of a more modest goal, the "expeditious demonstration of ignition and gain in the laboratory" as the highest priority ICF program. In the JASON's Science Based Stockpile Stewardship study of November 1994, which Koonin also co-authored, the following glowing statements related to NIF are made:

The NIF is without question the most scientifically valuable of the programs proposed for SBSS, particularly in regard to ICF research and "proof-of-principle" for ignition, but also more generally for fundamental science.[56]

As the most scientifically exciting program proposed by the national laboratories for Science Based Stockpile Stewardship (SBSS), we feel that NIF has an essential role to play in maintaining "the core intellectual competency" mandated by the 1994 National Defense Authorization Act (PL103-160).[57]

We believe there is strong evidence that NIF can achieve ignition (probably about as much evidence as existing facilities like NOVA can provide), nonetheless, the NIF will be exploring uncharted regions of high compression, and energy densities unique for a laboratory experiment. Unpleasant surprises cannot be ruled out. In the worse case scenario, NIF will come close to ignition with adequate diagnostics to determine accurately what would be the best design and critical minimum size pellet for both direct and indirect drive. Tests of such advanced ideas as the fast ignitor could also be made. Many defense and other science applications would be largely accessible even on a sub-ignited NIF. Naturally we expect continued progress in further evaluating ignition prospects from experiments on NOVA and on OMEGA upgrade, a direct-drive laser facility at the University of Rochester, and particularly from the ever more sophisticated computations in the coming years.[58]

Before being appointed Chairman of the NAS NIF Committee, Steven Koonin was actively lobbying the Congress on behalf of NIF for LLNL. In 1994 NIF development was proceeding through several "Key Decisions" (KD) (subsequently called "Critical Decisions" (CD)). KD-0 (CD-1), made in January 1993, permitted the preparation of a conceptual design of the NIF facility. In May 1994, a proposal that NIF proceed to KD-1 (CD-2) was sitting on the desk of then Secretary of Energy Hazel O'Leary. In the face of nonproliferation and environmental concerns raised by NRDC and others, Secretary O'Leary delayed signing KD-1 for NIF. Both Supporters and opponents of NIF voiced their concerns to Congressman Ron Dellums, then Chairman of the House Armed Services Committee, which oversees the budget for DOE Defense Programs budget, including the NIF budget. In June 1994, Lee Halterman, on Congressman Dellums' staff, initiated a series of roundtable discussions with NIF supporters and opponents in Dellums' Oakland office, to assist the Chairman in reaching a position on whether to support the KD-1 proposal. Steven Koonin accompanied LLNL Associate Director for Lasers Mike Campbell to the first of these meetings in June 1994.[59] There Koonin touted the readiness of the NIF project and claimed the scientific community was united in favor of NIF.[60]

On October 7, 1996, DOE issued a request for university research proposals, dubbed the Academic Strategic Alliances Program (ASAP), to support the Accelerated Scientific Computing Initiative (ASCI) an integral component of the SBSS program, with critical applications for ICF research, that is funded by DOE's Defense Programs. The ASCII/ASAP program is intended to generate, in conjunction with NIF and other experimental facilities, a quantum leap in the fidelity of nuclear explosion simulations. At its November 4, 1996 meeting at Los Alamos, the NRC-ICF Committee received a classified briefing on ASCI. The Committee then submitted an extensive list of questions to weapon/ICF laboratories (LLNL,LANL, SNL, NRL and LLE) pertaining to ICF, weapon design codes, and the ASCI program. The questions included, for example, "How will code development and/or experimental contributions from universities and other institutions be integrated into the ASCI program?"

The responses were due back to the NRC-ICF Committee in time for the December 5-6, 1996 meeting. The questions and answers were not made public until revealed through litigation discovery in 1997. Also, on December 5-6, 1996, DOE held an unclassified "Preproposal Conference" in Dallas, Texas to inform prospective grant applicants of DOE's research needs regarding ASCI/ASAP. Some 143 participants representing 47 universities and 10 other institutions attended the conference. "Preproposal submissions" for grants under the ASAP were due January 16, 1997. Forty preproposals were received and reviewed by DOE. Twenty-one final proposals were received by the March 18, 1997 deadline (two days before the NAS ICF report was released to the public). Five universities were awarded grants on July 31, 1997, including one to California Institute of Technology, where Koonin wears the multiple hats of Vice President, Provost and Professor of Physics.

Under the Caltech grant, a "Facility for Simulating the Dynamic Response of Materials" is to be established at Caltech. This and similar facilities at other universities are referred to as 'centers of excellence" under the ASCI/ASAP. The Caltech grant is potentially worth $47 million ($3 million in FY 1998, $5 million per year over the following four years, and DOE's intention to renew the grant for an additional five years at the same funding level). Paul Dimotakis and Jack Dongarra, both of whom served with Koonin on the NRC-ICF Committee , are identified as co-investigators under the DOE grant to Caltech. Management of the Caltech program will be achieved through efforts of the principal investigator and the oversight of three committees: an Executive Committee, a Project Steering Committee, and an External Advisory Committee. The Project Steering Committee, among other roles, will be responsible for annual reprogramming of funding based on its evaluation of project activities. The Project Steering Committee, including the chair, will be appointed by Caltech's Provost, Steven Koonin.[61]

Thus, Koonin, Dimotakis and Dongarra (all involved directly in the Caltech proposal) were provided classified and unclassified briefings and written materials on ASCI/ASAP that were not made available to other institutions competing for ASCI/ASAP grants. Caltech bid on the simulation grant while Koonin, Dimotakis and Dongarra were involved in an NAS review the technical and programmatic relationship of the NIF to the rest of the SBSS program, especially advanced three-dimensional computer simulations.

Koonin was interviewed for, and appeared in, a promotional video prepared by LLNL that was shown at the NIF groundbreaking ceremony on May 29, 1997. Dr. Kendall, also appeared in the same video. The taping of this video presumably occurred after the NRC-ICF Committee report was released, but it may have occurred earlier.

W. David Arnett is a Regents' Professor of Astrophysics at the University of Arizona. His research interests include nuclear, relativistic, and computational astrophysics. His previous positions include terms at the University of Chicago and as a Distinguished Professor at the Enrico Fermi Institute. He is a fellow of the American Physical Society and is a member of the International Astronomical Union and the American Academy of Arts and Sciences. He has recently participated in experiments using the NOVA laser facility at Lawrence Livermore. He is a member of the National Academy of Sciences.[62] (emphasis added)

David Arnett has been given free time on Nova, the largest ICF machine at LLNL. He has co-authored with LLNL scientists at least one technical paper based an research on the Nova machine.[63] This research was performed under the auspices of the DOE by LLNL.[64]

Robert L. Byer is a professor of applied physics and director of the Center for Nonlinear Optical Materials at Stanford University. He previously served as Stanford's dean of engineering. His research expertise includes diode-pumped solid-state lasers, nonlinear optics, nonlinear materials, and laser remote sensing. He serves on the Director's Advisory Committee at Lawrence Livermore National Laboratory and has consulted for its laser directorate. He served as a consultant to the ICFAC in its review of the National Ignition Facility laser design. He is a fellow of the Institute of Electrical and Electronics Engineers, the Optical Society of America, and the American Physical Society, and is past president of the IEEE Lasers and Electooptics Society. He is a member of the National Academy of Engineering.[65] (emphasis added)

Robert Byer has received $5,500 in consulting fees related to his membership on the LLNL Director's Advisory Committee and his advisory role with respect to LLNL's Laboratory Directed Research and Development (LDRD) program.[66]

4. Dr. Robert W. Conn
Dean, School of Engineering, University of California at San Diego, La Jolla, California

Robert W. Conn is dean of engineering and Walter J. Zable Professor of Engineering and Applied Science at the University of California, San Diego. His experience in fusion physics and engineering, and in plasma and materials technology, includes specific expertise in the dynamics of fusion burning plasmas, the interaction of plasma with material surfaces, and fusion reactor design. He has served on numerous DOE magnetic fusion advisory committees, as well as on the NRC's 1990 review of ICF. He is a fellow of the American Nuclear Society and the American Physical Society. He is a member of the National Academy of Engineering.[67] (emphasis added)

Robert Conn is also one of the "deans" of the fusion energy community. His past fusion research has been limited to magnetic confinement fusion. His strong pro-fusion views are well known. Conn has served as a member of numerous previous reviews of the DOE's Magnetic and ICF Programs, including:

1) DOE's Fusion Review Panel of the Energy Research Advisory Board, August 1980;

Ronald C. Davidson is a professor of astrophysical sciences at Princeton University. He headed the university's Physics Laboratory from 1991 through 1996. His previous positions include that of assistant director for applied plasma physics in the Office of Fusion Energy, DOE, and 10 years as director of the Massachusetts Institute of Technology Plasma Fusion Center. His research interests include plasma turbulence, nonlinear plasma theory, nonneutral plasmas, and intense charged particle beams. He has served on numerous national and international review committees, including the 1986 and 1990 NRC reviews of the ICF program, and on the DOE ICFAC. He is a fellow of the American Physical Society.[68] (emphasis added)

Anthony J. DeMaria is chairman and president of DeMaria ElectoOptics Systems, Inc. and a research professor at the University of Connecticut Photonics Research Center. His previous experience includes the positions of assistant director of research for electronics and photonic technologies, and acting assistant director of research for information systems and technology, at United Technologies. His expertise in applied and laser physics includes experience in utilization of laser devices, interaction of elastic waves with coherent light radiation, gas laser research and applications, and acoustic- and electo-optics. He served on the 1990 NRC review of the ICF program, and on the DOE ICFAC. He is a fellow of the IEEE, and past editor of the IEEE Journal of Quantum Electronics, a fellow and past president of the Optical Society of America, and a fellow of the American Physical Society. He is a member of the National Academy of Engineering.[69] (emphasis added)

Paul E. Dimotakis is the John K. Northrop Professor of Aeronautics and a professor of applied physics at the California Institute of Technology. His research focuses on investigations of turbulent-flow phenomena, with an emphasis on turbulent transport and mixing in liquid- and gas-phase, chemically reacting as well as nonreacting flows, and combustion. He has consulted for the Lawrence Livermore National Laboratory in the area of turbulence and turbulent mixing and has participated in experiments at the NOVA laser facility at Lawrence Livermore. He is a fellow of the American Physical Society.[70] (emphasis added)

Paul Dimotakis co-authored with LLNL scientists a technical ICF research paper under a LLNL grant.[71]

Dimotakis is a co-investigator under the ASCI/ASAP center of excellence at Caltech. This project is discussed under Steven Koonin's biographical sketch above. As noted there, the preliminary proposal for this effort was due January 16, 1997, prior to the publication of the NRC-ICF Committee final report on March 20, 1997. The final contract proposal was due March 18, 1997, two days before the NAS ICF report was released to the public.

Jack. J. Dongarra holds a joint appointment as Distinguished Professor of Computer Science at the University of Tennessee and as Distinguished Scientist in the Mathematical Sciences Section at Oak Ridge National Laboratory. He was formerly the scientific director of the Advanced Computational Research Facility at Argonne National Laboratory. His expertise includes numerical algorithms in linear algebra, parallel computing, use of advanced computer architectures, programming methodology, tools for parallel computers, and high-quality mathematical software. He is a fellow of the American Association for the Advancement of Science.[72] (emphasis added)

Jack Dongarra is a co-investigator under the ASCI/ASAP center of excellence at Caltech. This project is discussed under Koonin's biographical sketch above. As noted there, the preliminary proposal for this effort was due January 16, 1997, prior to the publication of the NRC-ICF Committee final report on March 20, 1997. The final contract proposal was due March 18, 1997, two days before the NAS ICF report was released to the public.

Roger W. Falcone is professor and chair of the Department of Physics at the University of California at Berkeley. His recent research includes topics in laser interaction with solids, gases, and plasmas; atomic physics; and x-ray scattering. Dr. Falcone has served on numerous scientific advisory committees, including several for the National Science Foundation involving a science and technology center, the LIGO project at MIT and Caltech, and a visiting committee at NSF; a review committee for the Max Planck Institute in Garching; and advisory committees for Lawrence Livermore National Laboratory. He has served on numerous national and international advisory committees for scientific societies. Throughout his career he has consulted for several laser and electro-optics companies and has consulted with Lawrence Livermore National Laboratory in the areas of laser interaction with matter and other areas of physics in the laser and physics divisions. He has received partial support from DOE for several research projects at Berkeley through LLNL. He is a recipient of an NSF Presidential Young Investigator Award and is a fellow of the American Physical Society and the Optical Society of America.[73] (emphasis added)

Roger Falcone received $91,597 in consulting fees from LLNL between January 30, 1989 and February 1997. A portion of his consulting was with the Physics & Space Technology Directorate and the X Division. Falcone arranged for one of his graduate students, T.D. Donnelly, to spent two months at LLNL on a laser research project. The two subsequently co-authored with others at LLNL a technical paper based on this collaboration.[74] This work was supported by the U.S. Air Force Office of Scientific Research and through a collaboration with LLNL.[75]

Hermann A. Grunder is the director of the Thomas Jefferson National Accelerator Facility, the DOE's newest laboratory for nuclear physics research in Newport News, Virginia. Before coming to Jefferson Laboratory in May 1985, he served as deputy director of general sciences at Lawrence Berkeley Laboratory. Experienced in the design, construction, and operation of accelerators and neutral beam injectors, Dr. Grander has also managed large facilities through construction and operations. Dr. Grunder is a fellow of the American Physical Society, is division councilor of the Division of Physics of Beams, and has served on a number of professional and review committees such as the DOE Joint Coordinating Committee on the Fundamental Properties of Matter, the Relativistic Heavy Ion Collider Policy Committee, and the National Institute of Standards and Technology Panel for Radiation Research.[76]

Hermann Grunder was a member of Livermore's NIF Council. "The charter of the [NIF] Council is to advise the Associate director of Lasers [at LLNL] on all aspects of the [NIF] project during its distinct phases of design, construction, and operations."[77] "The Council will be composed of members selected for their relevant knowledge and experience and will provide critical input to ensure the successful realization of the National Ignition Facility."[78]

Henry W. Kendall is the J.A. Stratton Professor of Physics at the Massachusetts Institute of Technology. He is recognized for his research in high-energy physics, including high-energy experimental physics and nucleon structure. He is a founding member of the Union of Concerned Scientists (UCS), an organization whose missions include advocacy of U.S. policies and international agreements that control nuclear weapons proliferation and lower the risk of nuclear war.

He has served as chairman of the UCS since 1973. He has held various advisory positions, including service on the JASON group and on the Galvin Committee review of the DOE laboratories. He is an advisor to the World Bank and is the organizer and chairman of the bank's Panel on the Genetic Engineering of Crops. He is on the board of trustees of the Woods Hole Oceanographic Institution as well as of the National Religious Partnership for the Environment. He is the recipient of numerous prizes and awards, including the 1990 Nobel Prize for physics. He is a fellow of the American Association for the Advancement of Science and the American Physical Society. He is a member of the National Academy of Sciences.[79]

On May 8, 1996, before joining the NRC-ICF Committee, Henry Kendall joined with Hans A. Bethe and Herbert F. York and wrote to Congressman John T. Myers, Chairman of the Subcommittee on Energy and Water Development of the House Appropriations Committee, stating:

We would like to urge your support of Science-Based Stockpile Stewardship (SBSS), a program proposed by the Department of Energy (DOE) as part of its Stockpile Stewardship and Management Program (SSMP)...

Last year two of us sent a letter to Congress expressing our strong support for the NIF as a part of the science-based stewardship program. The reasons we gave then remain true today. NIF will be important to the SSMP because its experiments will fill the experimental gap described above. Its scientific investigations will also be important to fusion energy and basic science. Such opportunities will help attract and maintain the scientific and technical talent that the nation will need in the future as we continue all aspects of the program to reduce the worldwide nuclear threat. The same expertise is needed to support further nonproliferation efforts. Ambassador Holum often uses the NIF as one of the new technologies that has enabled the U.S. to seek a true CTBT. These new elements-advanced computer capabilities and new experimental facilities-do not detract from the core weapons science capabilities, they strengthen and sustain them.

We voice out urgent support for science-based stewardship-as defined above. If we can be of further assistance, please call upon us. (emphasis added)

Arthur K. Kerman is a professor of physics at the Massachusetts Institute of Technology. His research interests in theoretical nuclear physics include nuclear QCD-relativistic heavy-ion physics, nuclear reactions, and laser accelerators. Over the course of 30 years, he has had various long-standing consulting relationships with Argonne, Brookhaven, Lawrence Berkeley, Lawrence Livermore, Los Alamos, and Oak Ridge national laboratories, as well as with several private companies and the National Bureau of Standards (now NIST). He currently has active consulting relationships with LLNL and LANL. He has similarly served on numerous professional committees for DOE, the National Science Foundation, Stanford University, the University of California, and the White House. He currently serves on the Director's Advisory Committee of LLNL, the Physics and Space Technology Advisory Committee at LLNL, the Relativistic Heavy Ion Collider Policy Committee at Brookhaven, the Physics Division Advisory Committee at LANL, and the Theory Advisory Committee at LANL. He was a member of the DOE ICFAC. He is a fellow of the American Physical Society and the American Academy of Arts and Sciences.[80] (emphasis added)

Arthur Kerman has been a paid consultant to LLNL since 1964, and to LANL since 1961. During the period, Sept. 15, 1995 to Oct. 31, 1996, which overlapped his participation as a member of the NRC-ICF Committee, Kerman was under contract at LLNL to serve as a consultant to the laboratory director and two directorates -- The Physics and Space Technology (P&ST) Directorate and the Laser Programs Directorate. According to the contract signed by Dr. Kerman, the services to be performed, and related projects, included:[81]

Physics & Space Technology Directorate, N Division

Description of Projects:

Serve on the Physics Advisory Committee (PAC)

Advise in Program planning for N-Division

Description of the Services:

Advise the Associate Director for P&ST and the Laboratory director of strategic, scientific, and technological issues that can affect the directorate and the Laboratory; review and assess current programs and new directions.

Critique projects and provide R&D plans in N-Division

Laser Programs
Description of Projects:

Technical and Physics consulting for Laser Programs

Description of the Services:

Critique future Laser Program business plans

Critique future Laser Program business plans for the National Ignition Facility

During this period of service, the LLNL P&ST Directorate included the X Division, which conducts theoretical research on CF physics and the NIF target design. Laser Programs is divided into four major research areas, one of which is ICF. Laser Programs also manages two ICF projects, Nova and the NIF. During this consulting period, Sept. 15, 1995 to Oct. 31, 1996, Kerman was paid by LLNL $ 48,507 in consulting fees at $847/day, which indicates that Kerman charged for 55.5 days worth of consulting during this period.[82]

On Oct. 1, 1996, Kerman renewed his consulting contract with LLNL for the period, Oct. 1, 1996 to Oct. 31, 1997. This contract is similar to the previous one with respect to services to be provided to the PS&T Directorate, but it excluded any reference to consulting with Laser Programs. During the period October 1, 1996 to sometime prior to February 1997, he was paid by LLNL $ 5,376 in consulting fees at $891/day, which indicates that Kerman had charged for 6 days worth of consulting during this period. No data is available to NRDC for subsequent months.

From November 1, 1987 through February 1997, Dr. Kerman was paid by LLNL $286,000 in consulting fees for 395 days of consulting. From Nov. 1, 1990 to Oct. 31, 1992, Kerman was paid by LLNL $19,845 for 30.84 days of consulting on the ICF program.

It should be noted that these data do not appear to cover work performed by Kerman at LLNL while on two separate sabbaticals, where his salary was apparently covered by other sources of funding.

Kerman's consulting arrangements with LLNL was so extensive that he maintained an office at LLNL in the Laser Programs area, and at least for some period he kept an apartment and automobile in California -- in the Livermore/Bay Area. He is on a board overseeing LLNL that reports to the University of California Board of Reagents. He frequently attended internal meetings on ICF and NIF matters at LLNL. Dr. Kerman co-authored a technical paper with F.V. Hartemann who is on the faculty at the University of California at Davis and who works out of UC Davis' facilities LLNL.[83] This work was supported by LLNL.[84]

Dr. Kerman was not involved in fusion work until he was appointed by Energy Secretary Admiral James D. Watkins to serve on DOE's Fusion Policy Advisory Committee in 1990. This committee operated from March-September 1990, about six months. Dr. Kerman subsequently was appointed to DOE's Inertial Confinement Fusion Advisory Committee (ICFAC), when it was formed in late-1992, and served as a member until the committee was abolished in 1996.

Steven A. Orszag is the Forrest G. Hanuick '31 Professor of Engineering and Professor of Applied and Computational Mathematics at Princeton University. He is well recognized for his expertise in fluid dynamics and applied mathematics, and is co-author with Carl Bender of the widely used textbook Advanced Mathematical Methods for Scientists and Engineers. He is the recipient of numerous awards, including the American Physical Society's Otto Laporte Award for fluid dynamics, the American Institute of Aeronautics and Astronautics Fluid and Plasma Dynamics Award, and the G.I. Taylor Medal. He is a fellow of the American Physical Society.[85]

Reportedly, Dr. Orszag is a joint owner of a commercial firm with the director, or someone else, from at the University of Rochester's Laboratory for Laser Energetics (UR/LLE).[86] Orszag co-authored a technical paper with Dr. McCory.[87]

Marshall N. Rosenbluth is a professor of physics Emeritus at the University of California at San Diego. His research interest is the theoretical physics of plasmas. He was a nuclear weapons designer at Los Alamos National Laboratory early in his career (1950-1956). He consults primarily as a member of the Joint Central Team of the International Thermonuclear Experimental Reactor (ITER), which is funded by the DOE Office of Fusion Energy Science (the ICF program is independent of DOE OFES), and also consults at General Atomics. His committee service includes membership on committees concerned with international security and arms control, such as the JASON group, and the National Research Council's Committee on International Security and Arms Control. He served on both the 1986 and 1990 NRC reviews of the ICF program, as well as on the DOE ICFAC. He is a winner of the Fermi Prize. He is a member of the National Academy of Sciences.[88] (emphasis added)

Marshall Rosenbluth, a fusion theorist, is another of the "deans" of the fusion energy community. He has served as a member of numerous reviews of the DOE's Magnetic and Inertial Confinement Fusion Programs, including:

1) DOE's Fusion Review Panel of the Energy Research Advisory Board, August 1980;

2) National Academy of Sciences, Review of Department of Energy's Inertial Confinement Fusion Program, January 1990;

For quotes from the JASON's "Science Based Stockpile Stewardship" study, which Rosenbluth and Koonin co-authored, see discussion under Steven E. Koonin, above. In the more recent JASON's "Inertial Confinement Fusion (ICF) Review," which Rosenbluth also co-authored, we find:

In the context of the situation described in the last paragraph, we are convinced that the present ICF program does make an important contribution to SBSS, and that NIF will substantially increase this contribution. Therefore we believe the ICF program, including the NIF, should be supported as part of the present Stockpile Stewardship and Management Program. [p. 3]

... Therefore, on balance, we find the case for supporting NIF together with the base ICF program as a component of SBSS as compelling as it was in the summer of 1994. We are aided in reaching this conclusion by the considerable progress made by the ICF program in the last 18 months toward increasing confidence that ignition will be achieved in NIF experiments. [p. 11]

15. Dr. George H. Trilling
Professor Emeritus, University of California and the Lawrence Berkeley National Laboratory,
Berkeley California.

George H. Trilling is Professor Emeritus at the University of California and the Lawrence Berkeley National Laboratory. His expertise is in high-energy physics. He has served on numerous advisory groups, including the High Energy Physics Advisory Panel of the DOE and committees for Fermilab, Argonne National Laboratory, Brookhaven National Laboratory, and the Stanford Linear Accelerator Center. He is a fellow of the American Physical Society and the American Academy of Arts and Sciences. He is a member of the National Academy of Sciences.[89]

The Lawrence Berkeley Laboratory is engaged in heavy-ion driver ICF research for DOE funded under the Department's Fusion Energy Program, which is separate from DOE's Defense Programs. Research on heavy-ion ICF targets will be conducted at NIF.

J. Pace VanDevender is the founder of Prosperity Institute, a firm dealing in the study and applications of human factors. He previously held positions at Sandia National Laboratories, where he headed the pulsed-power program from 1984 to 1993. His responsibility in that position included pulsed-power research and development, inertial confinement fusion, nuclear weapons effects simulation, and directed energy weapon research and development. He is a member of the Naval Studies Board of the National Research Council and has served on the Carrier 21 Study, the Mine Warfare Study, and the study on implications of advanced technology for Navy warfare in the twenty-first century. In addition, he has been a member of numerous advisory boards, including the Advance Photon Source at Argonne National Laboratory, the Compact Ignition Tokomak of Princeton Plasma Physics Laboratory, the Directed Energy Advisory Board of the Strategic Defense Initiative, and the Defense Sciences Advisory Board of Los Alamos National Laboratory. He is a fellow of the American Physical Society and a senior member of the Institute of Electrical and Electronics Engineers. He was awarded the Department of Energy's Lawrence Award for Physics in 1991.[90] (emphasis added)

Pace VanDevender is on leave from Sandia Laboratories. As noted above, while at Sandia he was in charge of ICF work funded by DOE's Defense Program. His membership on the Directed Energy Advisory board of the Strategic Defense Initiative is significant in this instance, as this the SDI Directed Energy X-ray laser effort was a major program at Livermore in the 1980's and involved some of the same personnel that are now working on the NIF project.

In sum, the committee was not balanced with respect to reaching a determination regarding the scientific and technological readiness of the NIF project to proceed to construction. Moreover, as we have documented several members had a direct financial relationship with the DOE laboratory that had the most to gain from the NRC-ICF Committee 's decision, a violation of NAS requirements.

Efforts to Achieve an Unbiased NRC-ICF Committee

Before the NRC-ICF Committee convened its first meeting, NRDC (Cochran) raised concerns with the NRC staff regarding the lack of balance and conflicts of interest regarding the newly appointed members. Dr. Steven Bodner, head of the Laser Plasma Branch at the Naval Research Laboratory (NRL), an ICF program contractor, had independently raised similar concerns. Over a period of months Bodner and Cochran appealed to Zolandz, to correct the balance problem. Failing to obtain relief from the NRC Staff, Cochran met with Dr. E. William Colglazier, the Executive Officer of the NRC, on December 4, 1996 to discuss the lack of balance of the committee membership and the refusal of the NRC staff to provide Cochran with documents and minutes of the meetings. Cochran supplied Colglazier with a six page analysis, "Evidence of Lack of Balance in the Selection of Committee Members on the National Research Council's Committee for the Review of the DOE Inertial Confinement Fusion Program, DRAFT, December 4, 1996. The next day Cochran testified before the NRC-ICF Committee, where he appealed to members of the committee to correct the balance problem. At this meeting Cochran suggested that each of the committee members has a personal responsibility to insure that the committee was fairly balanced, and that the issue should not left to the Academy to resolve.

Obtaining no relief from the NRC Staff or the committee itself, Cochran then appealed to Bruce Alberts, the President of the Academy (Cochran letter of December 23, 1996) and to Secretary of Energy Hazel O'Leary (Cochran letter of January 14, 1997). Dr. Alberts rejected Cochran's appeal in a letter of January 22, 1997, writing that "the NRC believes this committee to be appropriately balanced and free of conflict of interest for the charge addressed to the NRC." Secretary O'Leary did not respond. Only after exhausting all avenues of appeal did NRDC file suit and win an injunction prohibiting DOE from continuing to fund the NRC-ICF Committee or from utilizing the committee's report.

Conduct of NRC-ICF Committee Meetings

Once a federal advisory committee is operating, it must comply with requirements designed to ensure public access and participation under Section 10 of FACA. 5 U.S.C. App. II, § 10. Among other requirements, an advisory committee must provide public notice of and conduct open meetings, Id. at § 10(a), and must make documents and transcripts available to the public. Id. at § 10(b), 11(a).[91]

In violation of FACA there were never any public notices of meetings of the NRC-ICF Committee. Also in violation of FACA, the Academy operated under the following ground rules regarding attendance at the September 19-21 meeting at LLNL:

Re: meeting participation. Dr. Koonin wishes speakers and ICF Program managers to be present, as well as Dr. Crandall and whatever staff he wishes to bring. Other seating can be done on a first come, first serve basis. Those interested in attending should contact me [Zolandz]; we will maintain a list of participants and work with LLNL protocol to make sure they are aware of who is attending so they can do their necessary paperwork. Obviously, executive sessions means the committee and NRC staff only; also, the chair retains the right to declare a closed session at any time at his discretion.[92]

Upon learning that the NRC-ICF Committee existed, Western States Legal Foundation and Tri-Valley CAREs, two of the plaintiffs in the lawsuit against DOE and the Academy, attempted to gain access to meetings and meeting materials. The Academy staff provided the two with only a list of committee members, meeting agendas, and a one paragraph description of the committee. Five NGOs were invited to make short presentations at various meetings, but the Academy limited the scope of their testimony to scientific and technological readiness of NIF and the capability of NIF to support SBSS. A representative from Western States Legal Foundation was invited to make a presentation at the committee's September19-21, 1996 meeting at LLNL, but he did not attend the meeting on grounds that he was denied access to all substantive sessions. Representatives of three NGOs -- Tri-Valley CAREs, Los Alamos Study Group and Physicians for Social Responsibility were invited and gave 15 minute presentations at the committee's November 15, 1996 meeting at Sandia. The Academy staff chose not to invite Western States Legal Foundation to speak at the Sandia meeting[93]:

As we discussed, I am reasonably certain that we considered inviting Western States, but ruled out an invitation on the basis of their interests being outside the charge of the committee, and their inability to make useful technical comments. Their own description of their interests in this letter bears out that judgement [sic]. I don't think there is any reason to invite them now.

The NRC staff took the position:

" . . . the committee's task . . . is confined to scientific and technical issues concerning the readiness of the NIF project and the achievement of the ignition goal, and the capabilities of the Inertial Confinement Fusion Program to support the Administration's declared policy of Science-Based Stockpile Stewardship. . . .

In other words, in the limited amount of time which the committee has for its initial study, it determined to hear from NGOs selected specifically for their ability to speak to the technical issues surrounding NIF and its role in SBSS. These NGOs were chosen after seeking the suggestions of several knowledgeable individuals, among them Henry Kendall of the Union of Concerned Scientists (and a member of the committee), and Thomas Cochran of the Natural Resources Defense Council.[94]

Zolandz claimed, "All portions of meetings, except for classified briefings and discussions, and committee deliberations during executive session, are open;"[95] and in court papers Zolandz claimed "While DOE personnel attended most of the Committee's meetings, DOE participants were present only to provide the Committee with briefings."[96] Both of these statements proved to be false. On December 6, 1996, the last day of the sixth and final NRC-ICF Committee fact finding meeting, Chairman Koonin invited several DOE officials, including Reis, Staffin, and Crandall, to a closed session for unclassified discussions. At this meeting Chairman Koonin is said to have told ASDP Reis that DOE would get a "positive report" in NIF.[97] It is evident that the Committee Chairman intended to have a private meeting with DOE officials, whereby the Committee could convey its essential findings to DOE without making them public and well in advance of preparing a peer-reviewed final report.

In editorializing in favor of the Supreme Court or Congress taking the necessary steps to ensure that the Academy does not have to comply with FACA, the chancellor of the University of California at Santa Cruz maintained that FACA's aim to make advisory committees more open is a good one, but he then went on to say:

There are two good reasons why Academy committees meet in closed session to discuss draft findings and recommendations. The first is to ensure that the sponsors of studies cannot use their funding leverage to pressure the Academy or its committee members to make changes in the draft reports. The second is to draft recommendations that are not made final and public until vetted through the Academy's rigorous review process, where changes are frequently made to satisfy the Academy's standards of evidence.[98]

Chairman Koonin chose to undermine these two objectives by inviting DOE officials to a closed meeting of the NRC-ICF Committee. Arguably, since the committee was already in bed with DOE on the issue of the readiness of NIF for construction, there was no threat that DOE would put pressure on the Academy to change its forthcoming "positive" report. But Chairman Koonin, by his actions, also revealed that the Academy's internal and external review process is a proforma process. The action by Chairman Koonin also made a mockery of assurances by NRC Executive Officer William Colglazier to one of us (Cochran) that in order to ensure that the committee's report would not be biased, it would be subjected to an extra thorough Academy review process.[99] We also confirmed through discussions with one of the outside reviewers that the review process was perfunctory.[100]

Lack of Public Availability of Committee Documents

One of the more interesting pieces of evidence pertaining to the Academy staff's regard for the public's interest is the manner it dealt with the testimony, view graphs and minutes of the NRC-ICF Committee meetings requested by a fellow scientist working on behalf of a large public policy research and advocacy organization with 400,000 members. After the first meeting of the NRC-ICF Committee, one of us (Cochran) requested from Zolandz copies of unclassified testimony, handouts and view graphs prepared by DOE and laboratory officials that were made available to the Committee members. Zolandz informed Cochran that the Academy did not have the budget or staff to handle such public requests even when coming from scientists interested in the issues. Cochran offered to pay the cost of copying and make the copies himself. Still Zolandz refused to make the documents available stating it was against Academy policy to make such materials available to the public. Zolandz suggested that Cochran could contact and request the testimony from the speakers individually. Zolandz continued to refuse to provide documents even after the NRC-ICF Committee invited Cochran to testify before it.

With regard to minutes of the committee meetings, the Academy and DOE had worked out an arrangement whereby Dr. Douglas Drake, a DOE scientist in the ICF program, was permitted to attend all meetings, except executive sessions, take notes, and prepare minutes of the meetings. There was no public notice that such minutes existed or were being prepared. When NRDC learned of the existence of the first set of minutes we requested a copy from Crandall at DOE. Crandall informed Cochran that he would like to make them available, and would look into whether this was possible. Subsequently, through discovery in the course of litigation, we were provided the following E-Mail messages that indicate what actions were taken.

We have mailed to you copies of the notes of the first meeting of the committee as prepared by Doug Drake. Doug has done this for ICF for some time and keeps our library on this sort of stuff. We have often found his notes useful. They are reviewed to be certified as unclassified. We are using them for internal purpose only at this time.

The question is on whether/how to use them in this case. I have asked that they be sent to you, but you do not need to receive them in the future if you don't want to. I have been getting questions about the review and some complaint that there is no way to get info. I want to be as open as possible but you get to control information about this review. Interested parties who have asked include: Steve Dean (Fusion Power Associates), Tom Cochran (NRDC) and Bob Civiak (OMB). Please review the notes thinking about their possible use to inform such people. I propose to respond to inquiries by supplying these notes which are thorough and factual on details of all sessions other than your executive sessions. If we don't do something to provide information, equitably, to interested parties, we will get strong complaint at the public session in Albuquerque on election day. However, I don't think that the NAS/NRC is subject to the same sunshine laws as federal advisory committees.

Some of my own staff is opposed to simply supplying these notes to people who inquire (they are concerned about organizations like NRDC mostly - using the information against us in some way). I think that the ICFAC notes may have been acquired under freedom of information act (FOIA) but it would take a legal opinion as to whether the current notes are subject to that - we have no FOIA requests.

I would ask that you not supply these notes to inquiring people. You may direct inquiries to me, and I will be happy to provide them with agendas, and even arrange for their attendance at open portions of the meeting if desired. An appropriate response from you is that it is an NRC, not a DOE committee, and inquiries should be directed to the NRC staff.

An update of my response yesterday. I have consulted with other involved staff members here, and the concensus [sic] is that DOE should use its own judgement [sic] on how it treats these minutes. However, I would still ask that you direct all inquirers to me for information.

In sum, Crandall at DOE wanted to make the minutes publicly available, but Zolandz's immediate response was to withhold the minutes. A week later, higher authority at the Academy apparently had misgivings over the Academy taking the heat for refusing to make the minutes available and Zolandz was overruled. Crandall then made the minutes of the meetings available to NRDC and other interested parties.

Nevertheless, the Academy continued to prevent public access to Academy materials relevant to the NRC-ICF Committee meetings. One of us (Cochran) was invited to make a technical presentation before the NRC-ICF Committee, and did so, at the December 5 meeting in Washington, D.C. Despite being a scientist and invited to testify on technical issues, Cochran was initially denied access by Zolandz to written testimony and viewgraph materials of previous presenters. Only after Cochran appealed directly to the Executive Officer of the NRC was he given limited access to these materials -- less than 24 hours before he met with the committee.

Will Compliance with FACA Damage the Academy?

Academy officials and many of its members have claimed that compliance with FACA would be ruinous to the Academy for a variety of reasons.[101] In congressional testimony, the Academy's president, Bruce Alberts, argued that the application of FACA causes two types of damaging impacts: it would "seriously erode the independence of the Academy" by placing a number of government controls on the Academy's studies;" and it would "tie up the Academy operations."[102]

By far the most important issue to the Academy and its members is the preservation of the Academy's independence. As claimed by NRC Executive Officer William Colglazier, "[t]he key thing for us is our independence."[103] The Academy argues that its independence would be seriously eroded if a Federal officer or employee exercised any control over membership on Academy committees or conduct of the committee meetings.[104] It should be noted, however, that there is nothing in FACA that requires that the Academy relinquish to a Federal officer control over the selection of committee members or the conduct of Academy meetings, and therefore the Academy in not constrained from specifying its own operating procedures in its contracts with Federal agencies.

Out of concern that FACA would "tie up Academy operations," a Washington Post op-ed by Norman Augustine, former CEO at Lockheed-Martin Corporation, cited the experience of an Academy panel which was involved in overseeing a redesign of the space shuttle's solid rocket boosters following the Challenger accident.[105] Augustine claims this review, in which the committee met 89 times over 30 months, would not have been possible under FACA. There is no doubt that on rare occasions FACA's requirement of public notice of meetings could get in the way. On the other hand, the more frequently heard criticisms of the Academy is its slowness to act. In fact, "lacks timeliness" was one of the criticisms by the DOE staff of commissioning the Academy to review the ICF program. The DOE decided to replace ICFAC with an Academy committee on September 6, 1995, and discussions were held with the Academy as early as November 1, 1995. But the contract between DOE and the Academy for the NRC-ICF Committee work was not signed until May 6, 1996, and the first meeting was not convened until August 1-2, 1996. The Committee then met five times over four months to hear briefings on the program. Clearly, given the way the Academy usually operates, the FACA requirements for public notice of meetings would not be detrimental to the Academy or the public it purports to serve.

To avoid unnecessary burdens being imposed upon the Academy and to insure that the Academy controls its committee appointments, NRDC supports legislation that would provide a carefully crafted exemption of Academy committees from those FACA provisions that mandate direct federal agency oversight of advisory committee membership, meetings, and agendas. However, the essential public access and accountability provisions under Section 10 of FACA must be preserved. Unfortunately, the Academy has aggressively sought, in a most unbecoming fashion, to blur and obscure the distinction between federal agency "management" of its committees -- which we concur might impair the Academy's flexibility and independence in some instances -- and the essential public protections afforded by FACA against unwarranted secrecy, bias, and conflict-of-interest in the procurement of scientific and technical advice by Federal agencies.

Under the Academy's historical operating practices -- before being compelled to comply with FACA -- the committee chairman was given complete discretion to determine which meetings were open to the public and which were closed and who got invited to attend which meetings -- hardly a formula for impartiality and fairness. In the case of the NRC-ICF Committee this discretion was abused by the Chairman Koonin and Zolandz of the Academy staff. As noted earlier, for example, Zolandz refused to permit Western States Legal Foundation to address the committee, and Koonin invited senior DOE officials in for private discussions with the committee. In response to the recent court rulings the NRC has adopted a new "openness" policy whereby committees are to open those portions of meetings dedicated to "gathering information" while conducting closed "executive sessions" when meetings are dedicated to "committee deliberations." According to the Academy,

. . . the council's work "can benefit from increased public access and increased opportunities for public input" at those meetings in which panel members are gathering information. That openness must be balanced by assurances that "committees and panels are shielded from undue pressures."
"The institution retains the right to close meetings as appropriate," the policy states, "to conduct work free from external influences."[106]

The Academy argues that opening committee deliberations would stifle the free and frank exchanges that now take place in closed sessions. According to the Academy, "keeping the committee deliberations and our review process closed and confidential is fundamental for ensuring the independence of our studies and the scientific quality of our reports, enabling our recommendations and findings to be based on science rather than politics. A frank, confidential discussion of the merits of a committee draft during review is our most effective quality assurance mechanism."[107]

Just as it did during the Watergate scandal, such a "limited modified-hangout" policy falls far short of the disclosure requirements under current law. It is a sad commentary, but a fact, that the scientific elite in our democratic society apparently feels incapable of functioning effectively in full view of those who pay its bills. The Academy publicly claims its committees need to be shielded from federal agency, i.e., sponsor, influence. Were this a serious problem the Academy could adopt rules that required public disclosure of any and all such attempts by a sponsoring agency, or indeed any agency of the government. Unfortunately, an unstated but apparently greater concern is that many scientists are afraid of retribution by, or prefer not to be openly critical of, the work of other scientists. This condition arises more frequently when there are long standing personal and/or professional relationships between the committee members and scientists within the programs they are reviewing -- as was certainly the case with members of the NRC-ICF Committee. When committee members are truly independent of the programs they are reviewing, one would not expect the committees members to feel the need to shield their criticisms from their colleagues and the public. Moreover, it hardly enhances one's view of the integrity of the NRC's peer review processes to learn that the Academy feels the scientific judgment of its panel members could be swayed by the mere unsolicited presence of a funding agency representative or fellow scientist in the room. Apparently being forced on occasion to muster the courage of one's own convictions is not a requirement for service on NRC committees.

The FACA requirement that meetings be open to the public is designed to ensure the objectivity of advisory committees' advice, in part by preventing committees of "good old boys" from quietly colluding with agency management or laboratory colleagues and "cooking" the results. In our judgment it is far more important to have open deliberations to expose and curb committee abuses, than it is to close meetings to shield committee members from putative retribution from colleagues or funding agencies. Conducting critical deliberative meetings and peer reviews in secret by no means guarantees that these improper influences will not be brought to bear on the process. It merely guarantees that these influences will remain hidden. In the final analysis, the best deterrent to the abuses the Academy claims to fear is a norm of openness, in which the free exchange of ideas is truly free, and not limited to an anointed few.

The Academy's process for reviewing draft reports of its committees is modeled after the process used to peer review articles submitted to professional journals. The draft reports and the reviewers' names and comments are not made public. In our view it is presumptuous of the Academy to believe that its committees would not benefit by opening-up this review process more broadly to include all potentially interested and informed parties, as is done, for example, with Environmental Impact Statements.

Conclusions

As we have demonstrated above, collectively the membership of NRC-ICF Committee was egregiously biased in terms of determining (1) "the technological readiness of the NIF project to proceed with construction," and (2) the "adequacy of the ICF program in addressing the confidence of achieving ignition and providing the technical basis associated with NIF," as called for under the contract between the Academy and DOE. Several committee members had direct financial conflicts of interest, in direct violation the Academy's own conflict of interest rules. The Academy, the Committee, and DOE refused to correct these problems when they were brought to their attention. As a consequence the Academy biased the scientific and technical review of a major public policy issue. The Academy's staff treated the public shabbily; the staff and the NRC-ICF Committee acted to prevent interested members of the public from attending unclassified meetings and making presentations. For a short period the Academy's staff acted to prevent interested scientists and a Federal official at the Office of Management and Budget from obtaining unclassified minutes of a committee meeting. The Academy staff repeatedly refused to make available unclassified documents -- those that were distributed to the committee -- to an interested scientist who was not on the committee. In sum, the Academy violated FACA, the Academy's own rules, minimal standards of conduct related to the provision of scientific data to inquiring scientists, and minimal standards of decency toward the public while taking public monies to address a public policy issue. The Academy has demonstrated that it is incapable of enforcing even its own weak rules.

The nation deserved an independent, unbiased review of the scientific and technological readiness of NIF prior to spending up to $3.5 billion on the project.[108] The nation did not obtain such a review from the NRC-ICF Committee.

As a consequence of ALDF v. Shalala the Academy must now comply with FACA. As a consequence of NRDC, et al. v. Peña, et al., while the Court permitted the Academy to publish the first and only report of the NRC-ICF Committee, DOE cannot utilize it or any other product of the NRC-ICF Committee; and the NRC-ICF Committee, at least as presently constituted, has been abolished.

Given that the Supreme Court has let stand ALDF v. Shalala, the Academy is now turning to the Congress to seek a blanket exemption from the requirements of FACA. NRDC supports a more carefully crafted FACA exemption for the Academy. In our view, the Academy should be permitted to continue to appoint, screen, and manage its own committees, but the composition and deliberations of these committees should be subject to the same minimum statutory standards for openness, balance, and accountability that have long applied to federal advisory committees established or utilized by federal agencies. Moreover, failure to comply with these standards should be subject to judicial review to ensure that citizens can seek redress in the courts for the occasional egregious failures that occur in the Academy's internal system of controls -- as occurred in the case of the NRC-ICF Committee.

4. According to the NAS ICF Committee report, NIF is estimated to cost $1.148 billion to construct, there is an additional contingency of $0.127 billion, there are $0.397 billion in NIF related costs in the LLNL budget, and the annual NIF operating cost is estimated to be $120 million, i.e., $60 million per year each for direct operating budget and the target physics program ($1.8 billion total operating expenses over 15 years).

6. National Academy of Sciences, "Review of the Department of Energy's Inertial Confinement Fusion Program -- The National Ignition Facility," Committee for the Review of the Department of Energy's Inertial Confinement Fusion Program, Commission on Physical Sciences, Mathematics, And Applications, National Research Council, Washington D.C. 1997 [release date, March 10, 1997]. The NAS report can be found at http://www.nas.edu/cpsma/icf.htm.

12. According to DOE's notes of the meeting, Bodner told the ICFAC that these problems included "beam bending of about ten degrees, about 10% SRS [Stimulated Raman Scattering of the laser energy], approximately 10% SBS [Stimulated Brillouin Scattering ], fast electrons of unknown quantity, filamentation [of the laser beam] and accompanying sideways plasma flow, predictions of turbulence in the NIF fluid flow patterns, low x-ray conversion, low radiation temperature, late implosion times, weak hard x-ray wall emission, and strange M-shell x-ray emissions from the hohlraum interior. The overall problems that have been uncovered are not simply ones of energy loss, they are problems of a lack of control of the symmetry. It was suggested at this meeting that the anomalies could be fixed by simply re-aiming the laser beams. That is not true. They have not even been able to reaim the laser beams in the Nova experiments and obtain a symmetric implosion. The x-ray pinhole pictures look more like a shriveled fruit than a symmetric implosion. Something else is happening that is keeping part of the laser light from hitting the hohlraum walls." "Minutes - Meeting of the ICFAC, Sandia National Laboratories, June 6-8, 1995, p. 44.&

25. Dave Bixler, DOE's Acting Deputy Assistant Secretary for Research and Development, Office of Research and Inertial Fusion/DP-11, FAX Cover Sheet and attachment to Ronald D. Taylor, director of the Naval Studies Board of the Commission on Physical Sciences, Mathematics, and Applications ("CPSMA") of the National Research Council ("NRC"), November 1, 1995.

32. "Minutes [of the] Meeting of the National Research Council's Committee for the Review of the Inertial Confinement Fusion Program, NAS Beckman Center, Irvine, CA., August 1- 2, 1996." These DOE minutes of the panel's meeting go on to note that, according to Staffin, "current plans call for this [construction] decision to be reached in March 1997."

38. William Colglazier, Executive Officer of the NRC to Marshall M. Sluyter, Director, Office of Research and Inertial Fusion, DOE, February 21, 1996, enclosing Proposal No. 96-CPSMA-118, February 1996, p. 3; see also Charles E. Arbanas, Senior Contract Manager, letter to Richard G. Lewis, Contracting Officer, DOE, March 21, 1996, enclosing the same proposal. Essentially the same language, i.e., "An initial review...that determines (1) the technological readiness of the NIF project to proceed with construction, (2) adequacy of the ICF program in addressing the confidence of achieving ignition and providing the technical basis associated with NIF performance, and (3) projected capabilities of the NIF to support SBSS." (emphasis added) was included in the package of "For Action, New Projects" materials included with the agenda of the February 6 and 13-14 meetings of the Executive Committee of the Governing Board of the NRC.

39. Charles E. Arbanas, Senior Contract Manager, NRC, letter with enclosures to George S. Young, Office of Placement and Administration, DOE, April 30, 1997; a handwritten note indicates the letter was sent to G. Young via courier on May 6, 1996.

47. The "Overview of the Recommendations" to the 1990 Report stated, ". . . considering the extrapolations required in target physics and driver performance, as well as the likely $1 billion cost, the committee believes that an LMF [i.e. a Laser Microfusion Facility with yields to one gigajoule] is too large a step to take directly from the present program. However, . . . it should be possible to closely approach and probably achieve, ignition and modest gain in the laboratory by the intermediate step of a few-megajoule class laser driver, which might be constructed for less than $400 M. . . The glass laser is the only candidate laser driver that could be used for an ignition demonstration in the next decade. Indeed, this demonstration is the natural next step in the Nova program and is referred to by LLNL as the 'NOVA Upgrade.' . . . The real point is that a glass laser will likely allow an ignition demonstration for a reasonable cost, and there appears to be no compelling reason to wait for other drivers to catch up." Second Review of the Department of Energy's Inertial Confinement Fusion Program, Final Report, September 1990, p. 8. LLNL's NOVA "Upgrade" project soon became the National Ignition Facility, and its price tag jumped from $400 million to $1.7 billion (FY97 dollars), far exceeding the "ignition demonstration for a reasonable cost" rationale advanced in the 1990 report.

48. Dorothy Zolandz, "Declaration of Dorothy Zolandz, Ph.D. in Support of Defendant National Academy of Sciences's Opposition to Plaintiffs' Motion for a Preliminary Injunction," NRDC, et al. v. Peña, et al., March 3, 1997, at 2 and 11.

60. Congressman Dellums, in a letter to Secretary O'Leary, ultimately proposed that DOE introduce a new KD-1 Prime decision step, and not to proceed to KD-1 until NIF had been subject to a thorough review of the nonproliferation implications of NIF. On October 10, 1994 Secretary of Energy O'Leary signed KD-1. At her address at LLNL on the same day, Secretary O'Leary said, ". . . while I am clear personally that there is no nonproliferation deterrent in moving ahead with the project, . . . But I have heard those criticisms from people whose point of view I respect, and we have taken the time to understand that. The leadership coming from Chairman Dellums, of the House Armed Services Committee, to ask that we further expand the dialog with some members of the nonproliferation community -- not all -- and some environmentalists, so that we can clearly answer that question, is a piece I want to continue while we're moving logically through the process that will take us to Key Decision Number 2 [CD-1].&

91. 5 U.S.C. App. II, §10 (a)(1) Each advisory committee meeting shall be open to the public.
(2) Except when the President determines otherwise for reasons of national security, timely notice
of each such meeting shall be published in the Federal Register, . . .
(3) Interested persons shall be permitted to attend, appear before, or file statements with any advisory committee, subject to such reasonable rules or regulations as the administrator may prescribe.
(b) Subject to section 552 of title 5, United States Code, the records, reports, transcripts, minutes appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be made available for public inspection and coping at a single location in the office of the advisory committee or the agency to which the advisory committee reports until the advisory committee ceases to exist.
(c) Detailed minutes of each meeting of each advisory committee shall be kept and shall contain a record of the persons present, a complete and accurate description of matters discussed and conclusions reached, and copies of reports received, issued, or approved by the advisory committee. The accuracy of all minutes shall be certified by the chairman of the advisory committee.

96. Dorothy Zolandz, "Declaration of Dorothy Zolandz, Ph.D. in Support of Defendant National Academy of Sciences's Opposition to Plaintiffs' Motion for a Preliminary Injunction," March 3, 1997, at 16.

97. David Crandall, in court papers, claimed that "we received verbal indications that the committee's analysis found no technical reason to delay the NIF. David Crandall, "Declaration of David Crandall," March 3, 1997, at 17.

99. Colglazier made a similar statement to the press (Jocelyn Kaiser, Science, January 10, 1997, p. 147):

. . . Last month, Cochran asked NAS President Bruce Alberts to form a new panel.
Koonin declined to comment, and Colglazier maintains that the panel is well equipped to answer the scientific questions that DOE has posed. He adds that the NAS's standard internal review of the report will ensure the panel sticks to its charge. (emphasis added)

100. We choose not to reveal details because the NAS might take retribution against our source. It appears that independent reviewers' comments were not circulated to members of the committee. If the Academy disagrees with our characterization, NRDC challenges the Academy to make public the draft report and the reviewer's comments, information that would be made publicly available if the advisory committee were in compliance with FACA.

101. The Academy feels so strongly about these matters that while the ALDF v. Shalala case was being appealed to the Supreme Court, the Academy advised DOE that its preferred option for carrying out work for DOE was to "continue with our current process and procedures." E. William Colglazier, NRC, letter to Eric J. Fygi, DOE, 26 June 1997. In other words, the Academy's first preference was to continue to violate the law. Recognizing that "the DOE General Counsel's office does not consider this a viable option," the Academy offered DOE two other options for avoiding compliance with FACA. Id. "The second option is to structure an activity to use a "principal investigator" approach, i.e., to avoid completely the use of a committee." Id. The third option, involves establishing a single NRC Advisory Board which would comply with FACA, and have all other committees act as subcommittees reporting to the NRC Advisory Board. Although the Academy has prepared, or is preparing, a legal brief to defend this option, it appears to us to be illegal.

102. Bruce Alberts, President of the NAS and Chairman of the NRC, "Oversight of the Federal Advisory Committee Act," Testimony before the Subcommittee on Government Management, Information and Technology, Committee on Government Reform and Oversight, U.S. House of representatives, November 5, 1997, p. 3.

104. For example, in an editorial in The Washington Post, Norman R. Augustine cites an Academy assessment of the national blood supply during early stages of the AIDS epidemic as an example of an assessment that "might not have produced important recommendations for dealing with future threats to blood safety had it [the Institute of Medicine] been subject to the control of any of the Federal agencies whose actions were reviewed and, in some cases, criticized." Norman R. Augustine, Editorial, The Washington Post, August 6, 1997, p. A19. Similar sentiments have been echoed by editorials and letters to the editor in scientific journals. See for example, Professor M.R.C. Greenwood, Science, Editorial, July 11, 1997, p. 163; and Colin Macilwain, Editorial, Nature, April 10, 1997, p. 525.